Domres v. Storms

Edgcomb, J. (dissenting).

I think that the complaint was properly dismissed by the trial court, and that the judgment appealed from should be affirmed.

Plaintiff’s cause of action would not have survived Mr. Storms’ death had the accident occurred in this State.

Originally, at common law, all actions arising ex delicto died with the person by whom or to whom the wrong was done. (Hegerich v. Keddie, 99 N. Y. 258; Brackett v. Griswold, 103 id. 425, 427; Bernstein v. Queens County Jockey Club, 222 App. Div. 191, 193, 194.)

This rule has been modified to some extent in this State by statute, but not far enough to permit the survival of an action for personal injuries.

Section 120 of the Decedent Estate Law prescribes as follows: “For wrongs done to the property, rights or interests of another, for which an action might be maintained against the wrongdoer, such action may be brought by the person injured, or after his death, by his executors or administrators, against such wrongdoer, and after his death against his executors or administrators, in the same manner and with the like effect in all respects, as actions founded upon contracts. This section shall not extend to an action for personal injuries, as such action is defined in section thirty-seven-a of the general construction law; except that nothing herein contained shall affect the right of action now existing to recover damages for injuries resulting in death.”

The action at bar, being one to recover for personal injuries, is not saved from abatement by the statute just quoted. It would, be *634different if plaintiff had sued to recover for property damage. (Timian v. Whelan, 128 Misc. 192, 194; affd., 219 App. Div. 859, upon the opinion of Cheney, J., at Trial Term.)

The plaintiff, however, insists that the courts of this State are open to him because the accident occurred in Pennsylvania, and there was at the time and still is a statute in that State known as section 35-b of the Pennsylvania Fiduciaries Act of June, 1917, as amended and supplemented, which reads as follows: “ Executors or administrators shall have power, * * * to commence and prosecute all actions * * * and all personal actions which the decedent whom they represent might have commenced * * *; and they shall be hable to be sued, either alone or jointly with other defendants, in any such action, except as aforesaid, which might have been maintained against such decedent if he had lived.”

Renard v. Kier (6 Dist. & Co. Rep. 375) is the only decision in Pennsylvania which has been called to our attention where it has been held that, under the provisions of the above-quoted statute, an action for personal injuries may be maintained in that State by the injured party against the executor or administrator of the deceased wrongdoer. We take it that is the law of Pennsylvania.

While it is true that an action for a tort is transitory in its nature and follows the person of the defendant (Crashley v. Press Publishing Co., 179 N. Y. 27, 32; Gregonis v. Philadelphia & Reading Coal & Iron Co., 235 id. 152; Stewart v. Baltimore & Ohio R. R. Co., 168 U. S. 445,448; Atchison, Topeka & Santa Fe R. Co. v. Sowers, 213 id. 55, 67, 68), and that our courts may entertain jurisdiction of a negligence action which arises in another State when the plaintiff is a resident of this Commonwealth (Gregonis v. Philadelphia & Reading Coal & Iron Co., 235 N. Y. 152, 155), it is well settled that the courts of this State will not permit a party to enforce a remedy given by the statute of a sister State where the act conflicts with the settled policy of this State, or is adverse to principles of abstract justice. (Gregonis v. Philadelphia & Reading Coal & Iron Co., 235 N. Y. 152, 161.)

In harmony with the general law of comity obtaining among the States composing the Union, the presumption to be indulged in is that the law of a sister State is valid and when proved should be recognized, unless forbidden by the laws of our State, or by its public policy to be deduced from the general course of legislation, or from the settled adjudications of its highest court.” (People v. Martin, 175 N. Y. 315, 321.)

The same rule applies in regard to contracts. An agreement which is valid in the jurisdiction where made will not be enforced by the courts of this State, if its enforcement is contrary to the *635settled course adopted and followed here. (Straus & Co. v. Canadian Pacific R. Co., 254 N. Y. 407, 414.)

It has repeatedly been held that the public policy of the State is to be determined by its laws, whether they be found in its Constitution, statutes or judicial decisions. Unless so established, a State can have no settled policy. (People v. Hawkins, 157 N. Y. 1, 12; Dammert v. Osborn, 140 id. 30, 40, 41; Cross v. U. S. T. Co., 131 id. 330, 343; Matter of Lampson, 33 App. Div. 49, 51, 52; affd., 161 N. Y. 511; Clough v. Gardiner, 111 Misc. 244, 249; affd., 194 App. Div. 923; Johnston v. Chicago Great Western R. Co., 164 S. W. 260, 262.)

In a juridical sense, public policy does not mean simply sound policy, or good policy; but as defined by Daniel Webster in the Girard Will Case (2 How. [U. S.] 127) it means the policy of a State established for the public weal ‘ either by law, by courts or general consent.’ ” (Hollis v. Drew Theological Seminary, 95 N. Y. 166, 172.)

It is argued that there is nothing in and of itself repugnant to one’s sense of justice in permitting an injured party to recover in an action of this kind; that it is permitted in many jurisdictions. That may be true, but the policy of this State, as expressed by statute and a long line of judicial decisions, is against the survival of actions for personal injuries where the wrongdoer dies before judgment is entered.

When the Legislature decreed that the right to maintain an action against the executor or administrator of a deceased wrongdoer “ shall not extend to an action for personal injuries ” (Dec. Est. Law, § 120), that indicated in no uncertain terms the course which the law-making body of this State determined should be adopted and followed in relation to such actions. Add to this the many judicial decisions in this Commonwealth bearing on this subject, and all doubt as to the policy of the law in this jurisdiction is removed. The Legislature have said that the thing shall not be done, and that is enough.” (Jackson v. Walker, 5 Hill, 27, 32.)

As defined by the above authorities, it cannot be doubted that the public policy of this State is against the maintenance of this kind of an action. That being so, our courts should turn a deaf ear and a blind eye to plaintiff’s plea.

Section 426 of the Restatement of the Law of Conflict of Laws by the American Law Institute (Restatement No. 4) reads as follows: Whether a claim for damages for a wrong survives the death of the wrong doer or of the injured person depends upon the law of the place of wrong.”

Under this rule we find the following comment: “ If a claim for *636damages for injury survives by the law of the place of wrong recovery may be had upon it by or against the representative of the deceased party provided the law of the State of forum permits the representative of the deceased party to sue or be sued on such a claim. Without such power created by the law of the State of suit no recovery can be had.” (Italics mine.)

To the same effect is Zeikus v. Florida East Coast R. Co. (144 App. Div. 91); Wooden v. Western N. Y. & P. R. R. Co. (126 N. Y. 10); Howlan v. N. Y. & N. J. Tel. Co. (131 App. Div. 443); Leonard v. Columbia Steam Navigation Co. (84 N. Y. 48).

Here not only is there an absence of any statute similar to the one in Pennsylvania, but the Legislature has specifically decreed that any survival of a tort action when the wrongdoer dies shall not extend to an action for personal injuries.

Clough v. Gardiner (111 Misc. 244; affd. on opinion of Kapper, J., at Special Term, 194 App. Div. 923) cannot be distinguished in principle from the facts in the case at bar. In that case plaintiff’s testator was struck and killed by a car driven by one Gardiner, a resident of this State. The accident occurred in New Hampshire. An action was commenced against Gardiner to recover the damages whicl decedent’s next of kin sustained by reason of his death. After the commencement of the action Gardiner died. By the statutes of New Hampshire a right of revivor existed against the estate of a deceased defendant in an action to recover damages for personal injuries. The question involved was whether such an action, having properly been brought, could be continued in this State after the death of the defendant where ¡under our own law such an action would abate, although, had it been brought in New Hampshire, such revivor would have been authorized. That question was answered in the negative. The Clough case would seem to be decisive of this appeal.

I vote to affirm the judgment.

Judgment reversed on the law and a new trial granted, with costs to the appellant to abide the event.